Justice Properly Understood

In this feature, you’ll read, watch, and listen to some of the best that’s been said on what must be done in order to ensure American jurisprudence is capable of advancing the common good and resisting the forces of cultural, civic, and national decline. Dive in, and realize there is so much more than text alone that can guide us.

GET STARTED:

• Podcast | Originalism, Justice, and Common-Good, Oh My! (feat. Josh Hammer) | Moment of Truth Ep. 7
  • In this episode, Saurabh, Nick, and esteemed guest Josh Hammer discuss the over-liberalization of the American political Right and how an “originalist” judicial philosophy should be oriented toward the common good.
• Article | Why The Supreme Court Matters Like Never Before | Tablet Magazine
  • Michael Lind writes, “[The stakes] are high because the Supreme Court of the United States is no longer a court, in any meaningful sense. It is now a legislature—a legislature that is vastly more powerful than the U.S. Congress and far less democratic.”
• Video | Senator Hawley Speaks on the Supreme Court’s Bostock Decision
  • Senator Josh Hawley reacted to the recent Bostock Decision, which re-interpreted Title VII to extend to gay and transgender people, saying that “this piece of legislation changes the scope of the 1964 Civil Rights Act….There’s only one problem with this piece of legislation. It was issued by a court, not by a legislature. It was written by judges, not by the elected representatives of the people. And it did what this Congress has pointedly declined to do for years now, which is to change the text and meaning and the application and the scope of a historic piece of legislation…And I say this because if textualism and originalism give you this decision, if you can invoke textualism and originalism in order to reach a decision, an outcome, that fundamentally changes the scope and meaning and application of statutory law, then textualism and originalism and all of those phrases don’t mean much at all.”
• Podcast | Rachel Board and the Conservative Civil War over the Supreme Court and Big Tech | The Realignment Podcast
  • Rachel Bovard, Senior Director of Policy at the Conservative Partnership Institute, joins The Realignment to discuss the Supreme Court, the future of social conservatism, and how to tackle the issue of Big Tech.

ON ORIGINALISM:

• Article | A Better Originalism | The American Mind
  • Hadley Arkes, Josh Hammer, Matthew Peterson, and Garrett Snedeker offer “an appeal to conservatives for an originalism of moral substance.”
• Article |  Beyond Originalism | The Atlantic
  • In this essay, Adrian Vermeule argues that the common welfare clause in the constitution should be used as the basis for new right-wing constitutionalism to succeed originalism. Conservatives, like liberals today, could use the courts to achieve their policy goals more easily under this method.
• Article | Common Good Originalism | The American Mind
  • Josh Hammer argues, contra Vermeule, that originalism need not be abandoned for conservatives to pursue the common good in the courts. Hammer says that Vermeule’s proposal goes too far and instead a Hamiltonian understanding of the constitution would suffice.

DEEP DIVE:

• Article | Read Clarence Thomas’s Roadmap To Reining In Social Media Giants | The Federalist
  • “Unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties.”
• Article | Theodore Roosevelt and the Case for a Popular Constitution | American Affairs
  • “If a substantive conservatism is going to make it through this century, then conservatives are going to have to think with as much aspiration as liberals and leftists. That is why those who would salvage a traditional American society for posterity ought to look to the example of Theodore Roosevelt in 1912 and seek a popular conservatism that fights for a Constitution that truly serves the nation,” writes Logan Stagg Istre.
• Article | Abortion is Unconstitutional | First Things
  • “On the question whether, under the Fourteenth Amendment as it stands, the unborn from their conception onward are persons entitled to the protection of its due process and equal protection clauses, there is only one right answer, writes John Finnis in First Things.

IN THE WEEDS:

• Article | Standing Athwart History: Anti-Obergefell Popular Constitutionalism and Judicial Supremacy’s Long-Term Triumph | Josh Hammer for the University of St. Thomas Law Journal
  • The solemn responsibility of constitutional interpretation doesn’t lay with the Courts alone. Congress and the Executive have just as intense an oath to upkeep.
• Article | Samuel Chase, Forgotten Jurist | Athwart
  • Leo Thuman writes, “Within conservative legal circles, questions of substantive justice and how to interpret the Constitution and the Founding have risen anew. While the spark that ignited the recent debates was a disavowal of originalism as an ineffective way to secure the common good, some scholars have found America’s founding ideals to be amenable to conservative notions of the Common Good…”
• Book | Age of Entitlement: America Since the Sixties | Christopher Caldwell
  • Christopher Caldwell makes the historical case that the reforms of the 1960s, reforms intended to make the nation more just and humane, left many Americans feeling alienated, despised, misled—and ready to put an adventurer in the White House.

Explore more in the Power & Politics section of AmCanon: